(with Alfonso Lamadrid de Pablo) ‘On the notion of
restriction of competition: what we know and what we don’t know we know’
in Damien Gerard, Massimo Merola and Bernd Meyring (eds), The Notion of
Restriction of Competition: Revisiting the Foundations of Antitrust Enforcement
in Europe (Bruylant 2017), [FORTHCOMING]
‘Appreciability and De Minimis in Article 102 TFEU’ (2016) 7
Journal of European Competition Law & Practice [FORTHCOMING]
'Beyond the "More Economics-Based Approach": A Legal
Perspective on Article 102 TFEU Case Law' C.M.L. Rev. 2016, 53(3),
709-739
(first published in
LSE Law Society and Economy Working Paper Series, 09-2016)
The interpretation of Article 102 TFEU by the EU courts has given rise to
considerable controversy in the past decade. However, it is not always well
understood. The purpose of this contribution is to uncover the rationale
underpinning the case law on exclusionary practices and to provide a legal
perspective on ongoing debates. An analysis of the case law reveals that some
practices are deemed prima facie abusive while others are only subject to
Article 102 TFEU insofar as they are likely to have an anticompetitive effect.
This difference mirrors the object/effect dichotomy that is observed in the
context of Article 101 TFEU. The criteria used to draw the line between abuses
'by object' and 'by effect' is also the same. Against this background, it
appears that the 'frictions' observed in the case law can be understood and
addressed following the principles sketched by the ECJ in Cartes Bancaires.
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'EU Competition Law in the Regulated Network Industries'
LSE Law Society and Economy Working Paper Series, 08-2016
This piece considers the interface between EU competition law and the regulation
of network industries. The two have been transformed as a result of their
interactions. It is difficult to make sense of contemporary EU competition law
without taking into account the consequences that the liberalisation process has
had on it. Similarly, regulation sees EU competition law as a model and an
aspiration. In this sense, the two disciplines can be said to be mutually
compatible. In spite of the compatibility between EU competition law and
sector-specific regulation, there is tension between them. The objectives of the
two are not identical. Regulation is conceived to undermine the position of the
incumbent and to introduce fragmentation. EU competition law, on the other hand,
seeks to preserve the competitive constraints to which firms are subject. As a
consequence of this tension, the substantive standards in EU competition law may
vary to accommodate the features and demands of network industries. Finally, it
appears that EU competition law and sector-specific regulation have a
complementary relationship. Sectoral regimes often lack the tools to achieve
their objectives. The substantive scope of regulation may be limited, or the
range of measures insufficient to address all concerns. EU competition law is a
versatile instrument that can remedy some of these gaps. It has proved to be an
effective tool to preserve fragmentation in liberalised markets and to manage
technological change.
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COPY]
'Article 101 TFEU and Market
Integration'
(2016) 12
Journal of Competition Law & Economics [FORTHCOMING];
LSE Law Society and Economy Working Paper Series, 07-2016
Market integration is an objective of Article 101 TFEU. As a result, agreements
aimed at partitioning national markets are in principle restrictive of
competition by object. The case law on this point has been consistent since
Consten-Grundig. Making sense of it, however, remains a challenge. The purpose
of this piece is to show, first, how the methodological approach followed by the
Court of Justice changes when market integration considerations are at stake.
Secondly, it explains why and when restrictions on cross-border trade have been
found not to restrict competition by object within the meaning of Article 101(1)
TFEU.
An agreement aimed at partitioning national markets is
not as such contrary to Article 101(1) TFEU if the analysis of the
counterfactual reveals that it does not restrict inter-brand and/or intra-brand
competition that would have existed in its absence. It is possible to think of
three scenarios in this regard: (i) an agreement may be objectively necessary to
achieve the aims sought by the parties; (ii) a clause may be objectively
necessary for an agreement and (iii) competition is precluded by the underlying
regulatory context (as is the case, in particular, when the exercise of
intellectual property rights is at stake).
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COPY]
'Post Danmark II: The Emergence
of a Distinct 'Effects-Based' Approach to Article 102 TFEU' Journal of
European Competition Law & Practice (2016) 7(2) 113-115
'Copyright
Licensing and the EU Digital Single Market Strategy' LSE Law Society and Economy Working Paper Series,
WPS 19-2015
In May 2015, the European Commission launched an ambitious Digital Single Market
Strategy. One of the objectives of this agenda is to ensure that
copyright-protected content is accessible across borders by end-users. The
achievement of this goal requires the review of national copyright regimes to
ease the cross-border transmission of content and the enforcement of EU
competition rules. This piece explains the principles applying to the
territorial licensing of copyright-protected content against the background of
the Strategy and the proposals for legislative reform. As a matter of principle,
it is lawful under EU competition law to grant an exclusive territorial licence
to a single operator in a given Member State, and thus to prohibit the
transmission of the same content by others in the territory subject to the
licence. In certain circumstances, however, these agreements may be found to be
contrary to Article 101(1) TFEU. The piece places an emphasis on the analysis of
the Murphy case and provides the context to understand the ongoing proceedings
against the ‘Big Six’ Hollywood major studios and Sky UK.
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'Restrictions on
Innovation in EU Competition Law' European Law Review (2016) 41
(2) pp.201-219
Reflects on the approach of EU competition law to innovation-related
considerations. Examines the indirect influence of such considerations on
competition law enforcement, cases illustrating how reduced competition may
reduce a company's incentive to innovate, and the scope for arguing that a
practice has a negative impact on innovation rates. Suggests why the direct
introduction of innovation considerations to EU competition law is undesirable.
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'Post Danmark II, or the Quest for Administrability and
Coherence in Article 102 TFEU' LSE Law Society and Economy Working Paper Series,
WPS 15-2015
The legal status of quantity rebates under Article 102 TFEU is unclear. In Post Danmark II, the ECJ has been asked to provide a substantive test to establish whether this practice amounts to an abuse of a dominant position. As the case law stands, two possible approaches can be followed. Quantity rebates can be assessed in accordance with the framework sketched by the Court in Michelin I, or they can be subject to the principles applying to other price-based strategies such as ‘margin squeeze’ abuses and selective price cuts. There are compelling reasons to follow the latter approach. The criteria set out in Michelin I were conceived for target rebates, which – unlike quantity-based schemes – are not presumptively legal under Article 102 TFEU. In addition, the said criteria are not administrable, in the sense that they do not make it possible to define in advance whether a given rebate scheme is lawful or unlawful. In practice, and in contradiction with the logic underlying Michelin I, it is sufficient for a competition authority or a claimant to identify some ‘loyalty-inducing’ features to establish an abuse. As such, they are not suitable for their application in disputes before national courts, or by national competition authorities.
full text via SSRN
'Intel and Article 102 TFEU Case Law: Making Sense of
a Perpetual Controversy' Law Society and Economy Working Paper Series WPS
29-2014 December 2014
In June 2014, the General Court of the EU delivered its judgment in Intel. The debates to which it has given rise in less than six months suggest that the controversy about the legal treatment of exclusive dealing and rebates under Article 102 TFEU is still very much alive. This piece seeks to make sense of the persistence of academic and non-academic discussions around the question. It appears that the real reasons behind the contentious status of the relevant case law are more limited in their nature and scope than commonly assumed. Ongoing disagreements are merely the manifestation of what can be termed a 'friction' in the case law. If rulings like
Intel (and previous ones like Michelin II and British Airways) are contested, this is so because they are difficult to reconcile with other judgments addressing the same or comparable issues. First, the case law on, respectively, article 101 and 102 TFEU is based on mutually incompatible premises. Secondly, and to the extent that there is no reason to presume that exclusivity and rebate schemes are implemented for anticompetitive purposes and/or to assume that they harm the competitive process, they would be assessed more sensibly under a standard – as 'margin squeeze' abuses and selective price cuts already are.
full text via SSRN
'Towards More Competition in Pay TV Services?' LSE Law:
Policy Briefing Papers
5/2014
In January 2014, the EU Commission opened an investigation into the agreements
concluded between Hollywood major studios and pay TV operators in different EU
Member States. According to the EU Commission, some of the restraints included
in these agreements restrict cross-border competition between broadcasters. But
it is not clear whether intervention through competition law will achieve the
policy objectives sought. It would seem that the absence of cross-border
competition is not so much the consequence of a set of restrictive agreements
but of the underlying features and dynamics of the industry.
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'Discriminatory Conduct in the ICT Sector: A Legal Framework'
in Gintare Surblyte (ed), Competition on the Internet – MPI Studies on
Intellectual Property and Competition Law, vol 23 (Springer 2014) 63-79
Vertical access disputes are frequent in the ICT sector. Prominent cases before
the European Commission, such as Google, and some regulatory debates – and in
particular discussions about ‘net neutrality’ – are evidence of this. The
purpose of this piece is to identify a legal framework for the assessment of
unilateral discriminatory practices under competition law. Three main approaches
could be considered: (1) a welfare-based approach, based alone on the economic
impact of the practice on welfare; (2) an approach based on the (presumed or
alleged) intent of the firm; and (3) one that seeks to achieve consistency by
examining the substantive standards applying to similar practices. It is shown
that the latter approach is to be preferred, as it seems to be not only sound
from an conomic perspective, but in line with the purpose and logic of
competition law regimes.
click here for publisher's site
'The Commission Investigation into Pay TV Services: Open
Questions'
Journal of European Competition Law and Practice (2014), 5(8) 531-541
In January 2014, the Commission launched an investigation into pay TV services
in the context of a review of EU copyright rules and following the ruling in
Murphy, where the ECJ held that exclusive territorial licensing agreements may
be restrictive by object. Vice-President Almunia's statement expresses concerns
with restraints limiting the passive sales of pay TV services and with the
‘portability’ of subscriptions across borders. The Commission envisions a form
of cross-border competition between pay TV operators that is not easy to
reconcile with the observable industry dynamics. It is not clear to what extent
the suggested approach considers the ‘economic and legal context’ in which
agreements between studios and broadcasters are concluded.
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‘Exclusionary Discrimination under Article 102 TFEU’
Common Market Law Review (2014), 51(1) 141-163
The fact that an integrated dominant firm deals on more
favourable conditions with its affiliated divisions may be abusive within the
meaning of Article 102 TFEU. It is not clear when and why this is the case. It
has sometimes been suggested that, as a rule, dominant firms are not entitled to
favour their own activities over those of rivals. This piece shows that there is
no such thing as a non-discrimination rule applying across the board, which, if
anything, would run counter to the logic and purpose of competition law. A
case-by-case assessment is thus justified. There are compelling reasons to
expand to exclusionary discrimination the principles set out in the Guidance
Paper 2008 for the assessment of refusals to deal and "margin squeeze" abuses.
available from Kluwer [publisher's site]
click here for full text via Kluwer [LSE login
required]
‘State Aid Litigation before EU Courts (2004-2012): A
Statistical Overview’ Journal of European Competition Law and Practice
(2013), 4(6) 469-484
This article considers annulment actions and appeals brought by Member States,
recipients, and sub-national entities since 2004. Where the Member States took
part in the proceedings, Commission decisions were annulled more frequently by
the General Court. Annulments were more likely where the ‘private investor test’
was raised as a ground. On appeal, selectivity-related issues are prominent;
first instance judgments were rarely set aside.
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'Three Shifts in EU Competition Policy: Towards Standards,
Decentralization, Settlements' Maastricht Journal of European and Comparative
Law (2013), 20(3), 363-385.
EU competition policy has undergone fundamental transformations over the
past 20 years. The changes observed are substantive, procedural and
institutional in nature. Two decades ago, EU competition policy was enforced
centrally by the Commission in a way that is probably best described as
traditional administrative law-making. Policy was formulated by means of
formal decisions adopted in individual cases and by legislative instruments
regulating firm behaviour in detail. Following the adoption of Regulation
1/2003, and as a result of the use of economic analysis, the enforcement
landscape is more diverse and decentralized. National competition
authorities have emerged as key players in the field (a trend that is also
observed in other fields of EU economic regulation, including energy and
electronic communications). Individual decisions are now crucially
complemented by soft law instruments, the use of which started in the 1990s
and which now permeate the whole discipline, and by negotiated procedures.
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'The Law on Abuses of Dominance and the System of Judicial
Remedies', Yearbook of European Law (2013) pp.389-431
This article examines the extent to which the imperfect
nature of the EU system of judicial remedies can explain the peculiar
evolution of the EU law on abuses of dominance. A comprehensive analysis of
competition law judgments since the 1960s suggests that the procedural
avenue through which a case reaches the General Court and the European Court
of Justice has a significant impact on the outcome of individual cases and,
over time, on the very substance of Treaty provisions. It is submitted that
some of the distinct features of the case law on Article 102 TFEU – lack of
consistency, legal uncertainty, judicial restraint – are the consequence of
the fact that the scope of the notion of abuse has been defined in the
context of annulment actions against Commission decisions, as opposed to
preliminary references submitted by national courts in accordance with
Article 267 TFEU. This conclusion is tested against the evolution of Article
101 TFEU and Article 2 of the successive Merger Regulations.
full text available here
'Market failures, transaction costs and article 101(1) TFEU
case law' European Law Review 2012, 37(5), 541-562.
EU competition law is increasingly informed by economic
analysis. However, the tools of this discipline are rarely ever used
systematically for positive purposes. This article gives a unifying picture of
art.101(1) TFEU judgments based on familiar economic concepts (market failures
and transaction costs). It is submitted that a formalisation of case law based
on these concepts has greater explanatory power than the prevailing approaches
currently found in textbooks and policy instruments. The article shows, first,
that the availability of an efficiency explanation for an agreement is the
default starting point followed by EU courts when drawing the line between
restrictions of competition by object and by effect. Secondly, it explores how
market failures and transaction costs influence the analysis of restrictive
effects on competition under art.101(1) TFEU . These insights are equally useful
to define the scope of art.101(3) TFEU and the relevance of non-economic
considerations.
click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]
‘De minimis rule in competition law: An overview of EU and
national case law’ (with Inge Govaere), e-Competitions Special Issue,
April 2012
'Rules of purely sporting interest and EU competition law: why
the Wouters exception is not necessary' Competition Law International
2012, 8(1), 54-58
Questions the necessity of the approach adopted by the
European Court of Justice ruling in Wouters v Algemene Raad van de
Nederlandse Orde van Advocaten (C-309/99) in formulating an
activity-specific exception to justify sporting rules and arrangements
entered into by sports governing bodies that would otherwise have been found
to restrict competition by analysing the economics of sporting activities
and competition rules. Considers whether it is possible to distinguish
between economic and non-economic rules in a sports context.
'On the application of competition law as regulation: elements
for a theory' Yearbook of European Law (2010), 29 261-306
'Judicial review in Article 102' (with Jean-Yves Art) in
Federico Etro and Ioannis Kokkoris (eds), Competition Law and the Enforcement
of Article 102 (OUP 2010)
'The Future of Communications Regulation after Ofcom's Pay-TV
consultation', Utilities Law Review 2010, 18(3), 99-107.
Examines the implications of Ofcom's decision
to allow premium sports channels operated by BSkyB the same
access obligations applied to the "local loop" owned by BT.
Examines when an ex ante intervention is justified in the
communications markets, focusing on the rationale behind the EU
regulatory framework for electronic communications networks and
services and the unintended effects of ex ante intervention.
Considers the legal basis for Ofcom's intervention under the
Communications Act 2003 s.316 and its approach to assessing
anti-competitive conduct. Reviews the definition of "fair and
effective" competition.
'Evolving Priorities and Rising standards: Spanish Law on
Abuses of Market Power in the Light of the 2008 Guidance Paper' (with Luis Ortiz
Blanco), in Lorenzo Pace (ed.), European Competition Law: The Impact Of The
Commission’s Guidance On Article 102, Edward Elgar, 2011
'Article 82 EC as a “built-in” remedy in the system of
Intellectual Property: the example of supplementary protection for
pharmaceuticals in Italy', in Intellectual Property, Market Power and the
Public Interest (2008), Peter Lang, pp. 119-142
'The most appropriate tool for a better targeted State aid
policy' (co-author), in Economic Analysis of State Aid Rules - Contributions
and Limits (2007), Lexxion, pp. 29-67
'Selectivity, Economic Advantage, Distortion of
Competition and Effect on Trade' (co-author), in Economic Analysis of
State Aid Rules - Contributions and Limits (2007), Lexxion, pp. 119-155
'Annotation on Case C-171/05 P, Laurent Piau, (with
Denis Waelbroeck)Common Market Law Review (2006), vol. 43, n. 6,
pp. 1743-1756
'Recent Developments on the Invocability of WTO Law in
the EC: A Wave of Mutilation', European Foreign Affairs Review
(2006), vol. 11, n.1, pp. 63-86
'The Revival of Antitrust Law in Argentina: Policy or
Politics?', European Competition Law Review (2006) vol. 27, n.6,
pp. 317-323
